Alternative white paper

Presented to the UK government by the British in Europe coalition, of which British in Italy is a member.

Groups now affiliated to British in Europe are:

British in Europe (Germany)

British Community Committee of France

BRILL (British Immigrants Living in Luxembourg)

Expat Citizen Rights in EU (ECREU) on behalf of 6,000 members from 25 EU countries (France)

Fair Deal for Expats (France)

RIFT (Remain in France Together)

Brexpats Hear Our Voice (Belgium)

British in Italy

Bremain in Spain

EuroCitizens (Spain)

New Europeans (UK)

Alternative White Paper on the European Union (Notification of Withdrawal) Bill presented by UK

Citizens in Europe

Executive Summary

The duty of Parliament to scrutinise the proposal to give notice under Article 50 has been recognised by the Supreme Court. The Bill is without doubt the most important issue that will face this Parliament. It is open to it to make any approval conditional upon other matters. The government also plans to publish a White Paper on the Art 50 negotiations.

This Alternative White Paper, presented by a coalition of groups of UK citizens resident in other EU countries:

spells out the most serious of the many concerns now facing those who have in the past transformed their lives and those of their families in reliance on their rights as EU citizens;

sets out a Governing Principle for HMG’s approach should the Bill be approved in principle, under which the pre-Brexit rights of all those UK citizens living in the EU, and of all those EU citizens living in the UK, would be preserved;

stresses that simply confirming a right of residence is not enough, as the EU citizenship rights that these citizens have had whilst the UK was in the EU are indivisible and they need the full complex of rights in order to remain in the country where they currently reside;

endorses the view of a House of Lords Committee that these indivisible pre-Brexit rights can only properly be protected by being expressly included in the Art 50 withdrawal agreement;

makes the case for any approval of the Bill being conditional on HMG committing itself to the earliest possible implementation of the Governing Principle both in negotiations and, in so far as matters are within its own power, unilaterally.

Introduction

Any decision to trigger Article 50 will, absent express agreement to the contrary, turn upside down the lives of up to 5 million people who have exercised their rights as EU Citizens to live, work and/or study on the other side of the Channel. Between 1.2 and 2.1 million are UK citizens who have moved to EU countries and some 3 million are EU citizens resident in the UK.

All these citizens moved to other EU countries in good faith and with the legitimate expectation that their EU citizenship rights were irrevocable. Many will actually have moved abroad before the Lisbon Treaty amended the Treaty of the European Union to provide for a right of withdrawal under Article 50. They must not now be used as bargaining chips.

Further, whatever the merits of Brexit (this Paper does not address them), the referendum gave no mandate to alter the rights of these people. It was no part of the Leave campaign that their rights should be torn up: quite the contrary. It is therefore essential that whatever steps are necessary to protect these rights are taken, and taken as a matter of urgency to bring an end to the anxiety that they are feeling about their personal futures and those of their families.

The Prime Minister, in her speech of January 17th, said,

Fairness demands that we deal with another issue as soon as possible too. We want to guarantee the rights of EU citizens who are already living in Britain, and the rights of British nationals in other member states, as early as we can.

We welcome that commitment but, without further clarity as to the rights involved, it does little to allay our concerns. For the reasons that follow it is essential that all our existing rights, and those of EU citizens in the UK, be confirmed, and that the following Governing Principle be applied by the governments of the UK and the EU27 and the EU itself.

The Governing Principle should be as follows:

The UK’s withdrawal from the EU should not have retrospective effect on individuals. UK citizens currently resident in the EU and EU citizens currently resident in the UK should be expressly treated as continuing to have the same rights as they had before Brexit. This is not confined to a right of continued residence but extends to all related rights such as the acquisition of citizenship, the right to continue to work, whether employed or self-employed, or run a business, recognition of qualifications, right of equal treatment, right to move between and work freely across all EU countries without loss or change of any existing EU rights, the right to healthcare, pensions, etc. In short, the full complex of indivisible EU citizenship rights that they currently have should be guaranteed for these individuals.

The rights in question are considered in more detail below, but it is important to understand a point made by the House of Lords European Union Committee in its report “Brexit: acquired rights” (14 December 2016), para. 121:

In our view EU citizenship rights are indivisible. Taken as a whole they make it possible for an EU citizen to live, work, study and have a family in another EU Member State. Remove one, and the operation of others is affected. It is our strong recommendation, therefore, that the full scope of EU citizenship rights be fully safeguarded in the withdrawal agreement.

To give two practical examples, even on the assumption (which is very far from safe) that existing residents will be allowed to remain where they are:

UK professional aged 40 living and working in Italy through freedom of movement, with mortgage and young family born there, qualifications recognised through EU mutual recognition arrangements: recognition of qualifications falls away upon Brexit: requalification under Italian regulations required – a full-time 3 year course: how does a right of residence alone help if this person is without an income during that period and cannot maintain him/herself and family?

UK pensioner living in Spain dependent entirely on State Pension, which post-Brexit is no longer uprated: becomes seriously ill and not entitled to health care under Spanish system: what avail is a continued right of residence to a person who could not possibly afford to do so?

The issues facing British citizens in the EU post-Brexit must be one of the focuses of the Article 50 withdrawal negotiations. This is because (1) there is currently no clear and comprehensive legal basis on which those rights would be guaranteed post-Brexit and (2) the EU has competence to lay down the conditions that govern the entry into and residence in EU countries of third country nationals.

Any approval by Parliament of the giving of notice under Article 50 should therefore be conditional upon agreement by the Government:

Either to guarantee immediately and unilaterally these rights for EU citizens resident in the UK, and to make agreement on the rights of UK citizens in the EU in accordance with the Governing Principle above an absolute priority in the Art. 50 withdrawal negotiations, and to ensure that such unilateral guarantee and such agreement are confirmed in the withdrawal agreement so as to give it the force of international law[1], or,

If it continues to insist on reciprocity[2] in relation to guaranteeing the rights of EU citizens as regards the rights of UK citizens in the EU, to make agreement on the rights of both EU citizens in the UK and UK citizens in the EU in accordance with the Governing Principle above an absolute priority in the Art. 50 withdrawal negotiations, and to ensure that such agreement is confirmed in the withdrawal agreement so as to give it the force of international law,

In any event to guarantee immediately such rights of UK citizens in the EU as are not dependent on reciprocity.

In its first report the House of Commons Exiting the EU Committee concluded before, incidentally, hearing the evidence which it has now taken from EU and UK citizens affected by Brexit[3]:

It is clearly in everyone’s interests to resolve the position of EU nationals currently in the UK and of UK nationals in other EU member states as quickly as possible so as to provide certainty and reassurance to the individuals, their families and the businesses and services that rely on them. We were struck by the fact that witnesses who were on either side of the referendum debate were unanimous, when asked, in expressing their opinion that EU nationals working in the UK should have their status assured. This must be an early priority for the negotiations. (para. 87)

We should perhaps make it clear that, as UK citizens, we look to the Government of the UK to do everything within its power to protect our rights. We will be making similar calls on European governments if and when Article is triggered, but the UK, as the country withdrawing from the EU, is the country that must initiate that process and accordingly has the obligation of ensuring the minimum possible prejudice both to its citizens in the EU and to EU citizens living under its jurisdiction.[4]

In the remainder of this Paper we consider in more detail the rights of UK citizens in the EU that need to be protected, as well as the Article 50 negotiations.

KEY CONCERNS FOR BRITISH CITIZENS LIVING IN THE EU Right to remain

The right to remain is a key question for any UK citizen currently living in another EU country. Currently, as EU citizens under Article 20 of the Treaty on the Functioning of the European Union (TFEU), UK citizens in the EU have the rights of free movement and residence.

Rights of residence are currently a matter of EU, rather than national, law and will be continue to be so post-Brexit, since the EU has a common immigration policy for non-EU citizens, which applies in 25 of 28 EU countries.

Currently, as EU citizens, UK citizens in the EU are covered by Directive 2004/38. The right of ordinary residence is dependent on the UK citizen either having a job (employed or self-employed), or being able to prove that they have sufficient resources for themselves and family members not to become a burden on the social assistance system and have comprehensive health insurance, or that they are studying.

EU citizens who have resided legally in another EU country for a continuous period of at least 5 years then automatically acquire a right of permanent residence in that country.

However, in the absence of express agreement in negotiations:

Those who have not resided in the host country for 5 years, whether because they emigrated from the UK after March 2014[5] or because they moved between EU countries in exercise of freedom of movement, will not have a right of permanent residence and will lose their right of ordinary residence.

For those who have acquired a right of permanent residence, there is a large question mark over whether this right will survive Brexit, as it derives from EU citizenship, which UK citizens will lose at midnight on Brexit day.

UK Government policy is currently to deny permanent residence and thus any right to remain to EU citizens who have lived in the UK for very long periods if they did not have “comprehensive health insurance” even though this requirement received little publicity and was not practically necessary in the UK because of the NHS. If “reciprocity” becomes the benchmark of the recognition of rights of residence, there is a serious risk of other countries where comprehensive health insurance is not the norm applying a similar policy.

It is likely that many long-term residents may be able to rely on Council Directive 2003/109 post Brexit, which would allow them to apply for a right of “long-term residence” as non-EU nationals. However, unlike the right of permanent residence granted to EU citizens, which is automatic after living legally and continuously in a EU country for five years, there are conditions attached to this application. In addition to proving five years’ residence, they must be able to prove that they have “stable and regular economic resources” to support themselves and their families without recourse to social assistance and health insurance in respect of all risks normally covered for nationals of the EU country where they reside. Moreover, there may be integration requirements attached e.g. language and other requirements. Finally, the rights attached to this right of residence are far more limited than those acquired by EU citizens with permanent residence.

However many UK citizens will be unable to take advantage of this Directive because:

They do not have 5 years permanent residence in the country in question[6];

Although they have been ordinarily resident for 5 years, they unwittingly fall foul of the periods of permitted absence which are much shorter under this Directive than for EU citizens, which of course they were at the time of the absence;

They are unable to obtain health insurance at all in respect of all risks normally covered (the medical histories of a very significant number of pensioners and many others will cause insurance companies to refuse cover entirely or exclude it for conditions normally covered) or are able to do so only at prohibitive cost;

They do not have the requisite “stable and regular economic resources” required under this Directive but not required for EU citizens;

The family members that they may bring are more limited and those members they wish to bring are unable to comply with the requirements of this Directive which, again, are more restrictive than those for EU citizens;

It is possible that it will be argued that the Directive does not apply at all since it only applies to nonEU citizens, which UK citizens were not during the 5 years in question: at the very least such an issue would cause uncertainty, litigation and anxiety.

Some UK citizens may be in a position to apply for citizenship of the host country. Unlike residence, citizenship is still solely a matter for nation states, so the rules vary from country to country. Variations include whether dual nationality is allowed (in Spain it is not), the period of residence required before citizenship can be claimed (typically between 5 and 10 years) and the matters to be taken into account in the exercise of the discretion to grant citizenship (language skills, capital and income etc.). Applying for local citizenship may be an option for some UK citizens in some countries, but is very far from being a panacea for all. Where dual nationality is not possible there are the further difficulties that most UK citizens are proud of their origins and would not want to give up the citizenship of their birth, and the practical problem of continuing to obtain access to the UK if they do so. Further, in countries where the criteria for citizenship are more favourable for EU citizens than for others, the pre-Brexit criteria (or criteria more favourable) should be applied to applications by those who were already resident in the host country.

Right to work

The rights of EU citizenship include the right to work in another Member State. This means that UK citizens may move to another EU country to work without the formalities of requiring a visa, work permit, or residence permit, and without quotas applying to their admission for employment.

In addition, the principle of non-discrimination applies and this means that, as EU citizens, UK citizens in other EU countries enjoy the right to the same treatment as workers who are nationals of the EU country where they are working: this encompasses conditions of employment, remuneration and other conditions of work and employment.

Moreover, in order to ensure that EU citizens are not at a disadvantage when they exercise the right to work in another EU country, Regulation (EC) 883/2004 coordinates social security across the EU. This ensures that payments into each national system are acknowledged and different national systems coordinated, in other words, protecting social security entitlements, for example pensions, as if they had been accrued in the same Member State for the full course of their working lives.

Post-Brexit, agreement has to be reached to deal with questions such as:

Would British citizens already working in another EU country need a visa, and work permit to work in that country and would quotas apply to them?

Would British citizens resident in one country be able to work in another EU country? (Such crossborder commuting has become commonplace in a number of regions).

Would they continue to enjoy the right to the same treatment as workers who are nationals of that country?

Would pension payments into one system be aggregated and count towards an overall pension at the end of the working life as they do now?

How many years would one have to pay into the system to have a pension as a non-EU citizen and would pensions still be transferable from EU national systems if one retired back to the UK?

Right of establishment

Currently, British citizens in the EU benefit from the right of establishment under Article 49 TFEU. Selfemployed persons and professionals or legal persons (as defined in Article 54 TFEU) may carry on an economic activity in a stable and continuous way in another EU country.

The right of establishment allows both individuals and companies to take up all types of self-employed activity in another EU country, as well as to set up, become directors, and operate companies, agencies, branches or subsidiaries, subject to the exceptions and limitations laid down under EU law. It also means that individuals and companies can do so under the same conditions as those that the law of the EU country in which they are established provides for its own nationals.

The right of establishment is linked to the relevant EU rules on mutual recognition of qualifications (see below). These rules are key to implementing this right.

If the right of establishment were no longer to apply to British citizens in the EU, agreement has to be reached on the following issues:

Will self-employed persons who are working in another EU country, whether they work alone, or run a business that employs people, be able to continue to do so and what will be the formalities? Will they need a permit to continue running a business, and will this be permanent or temporary, with rights of renewal? If they employ staff, will they be able to continue to do so – what will be the formalities?

What will be the position of professionals practising their profession in another EU country? Will they lose their right of establishment because their professional qualification is no longer recognised under EU law (see below)? If they have set up a company to run their practice, will they have to complete additional formalities to maintain that company? Will they still be able to run their practice using an entity set up in the UK like an LLP?

Mutual recognition of qualifications

As mentioned above, the system set up at EU level for the mutual recognition of qualifications, which deals with the recognition under EU law of national delivered diplomas and qualifications, is key to the implementation of the right of establishment. Individuals are only able to establish themselves in another EU country to carry on an economic activity, if their qualifications are recognised in that country.

According to the EC’s database on regulated professions, there are a total of 216 regulated professions in the UK, which fall under this system. A doctor, nurse, dentist or vet from the UK can work in another EU country and vice versa without re-qualifying. A British architect can practise in France and set up her/his own architects’ office without having to re-qualify as a French architect. Similarly, a lawyer can be established in another EU country and practise UK and EU law without having to re-qualify, including by setting up their own legal practice and without needing to work with local lawyers (unless they appear before local courts).

If this system of mutual recognition of qualifications were no longer to apply to British citizens in the EU, the effects would be far-reaching. Well-established professionals, with their own businesses or employed by local firms or companies, would find that they are no longer able to practise their profession without re-qualifying. There would then be a question as to what this would entail – how many years and what studies would be necessary? The scope of their activities may also be limited. For example, only EU lawyers are able to appear before the Courts of the EU and are covered by legal professional privilege in the EU.

This is of course not only a headache for individuals but affects large numbers of British firms and companies, which have set up offices across the EU, or which rely on the services of these British professionals.

Rights to study

As EU citizens, British citizens also have a right to move to another EU country to study. EU citizens also currently benefit from the Erasmus+ scheme; the EU programme for education, training, youth and sport that enables young EU citizens to spend time studying in another EU country, which covers not just students but also trainees.

Post-Brexit, these are some of the questions facing those wishing to study in the EU or the UK:

How will Brexit affect the options of British citizens in the EU who want to study in the UK? Will they be treated as international students and pay international student fees, and will the NHS cover them?

Would British students already studying in other EU countries have to pay different fee levels in other EU countries post Brexit? Similarly, would EU students now be classified as international students and pay higher fees at British universities?

Would British students already studying still be eligible to apply for Erasmus semesters or Erasmus Masters schemes in other EU countries and still be able to access EU funding to cover their Erasmus studies or be eligible to apply for other sources of funding from other European initiatives, for example DAAD (for studying in Germany)?

How will Brexit affect the recognition of the European academic qualifications of British students, who already hold an Erasmus degree certificate?

If a British student decides to stay in the European country in which they were studying, when they have finished their study program, will their rights to access job-seeking benefits be affected?

Pensioners and others not economically active

Some 450,000 UK citizens have used their right of free movement to retire to another EU country or, having worked there, have chosen to continue to live there in retirement. A large number of these pensioners are not well off but chose to move because by so doing they could make their State pension go further/afford to buy their own home. Many of those retiring to Southern Europe did so for the health benefits the climate would bring.

Another group whose concerns should be considered is that of those who are not economically active and not retirees. Typically, this group would include following spouses who have remained at home to care for children and consequently have not entered the workforce in the country where they reside and whose rights of residence and to, for example, healthcare, depend upon those of their working spouse.

The right of residence apart (we have dealt with this above), the following concerns would arise for retirees post-Brexit:

Would the annual uprating of pensions in line with inflation continue? (Many of those living outside the EEA have their pensions frozen for life).

Would British pensioners resident in other EU countries continue to receive treatment as though they were nationals of the EU country of residence with the cost still borne by the UK Department of Health? (see para. 42 below)

Will pensioners continue to receive the Winter Fuel Payment?

Pension uprating: UK pensioners living in some countries outside the EEA (but not all, e.g. USA) have their pensions frozen for life, but those living in the EEA have received increases to cover inflation. This is not the place to discuss the merits of the denial of increases to those living in some countries, though in our view it is unfair. However the position of existing pensioners in the EEA is quite different and to deny them uprating would add yet another element of unfairness and, we say, illegal deprivation of a property right. This is because anyone who has worked in the UK in the 44 years since it entered the EU has made National Insurance contributions and paid UK taxes on the basis that if they retired to the EEA they would get increases. That is the entitlement they legitimately expected both when they made their contributions and when they made their decision to retire in an EEA country. A denial of the right to pension increases would be seen as an underhand and dishonourable attempt to use Brexit to claw back money from (often poor) pensioners.

Notably this is not an issue for bilateral negotiation, but a matter for the UK government alone. Pensioners, the value of whose pensions has already been dramatically reduced by the fall of Sterling post-Brexit, are already suffering anxiety about uprating, and in order to alleviate that anxiety the Government should make an immediate commitment to continue to pay increases to UK pensioners in the EEA.

This is not the place to argue the merits of the decision not to pay Winter Fuel Allowance to pensioners living in some EEA countries, but for the reasons given above the Government should commit now to continue to pay increases where, pre-Brexit, they are paid.

Health care

Cross-border health care in the EEA is provided for by arrangements made under Regulations 883/2004 and 987/2009 and adopted by all member states including the UK. Those who are working long-term in another EU country will pay into and be covered by the national health insurance system in that country. The key document for those who are not paying into the national health insurance system in the country in which they live is the S1 form, which entitles the holder to medical treatment in their country of residence on the same terms as nationals of that country. It is issued to:

those entitled to the State Pension, contribution-based Employment Support Allowance or other“exportable benefits”;

those posted to a country other than their country of origin for a period of not more than 2 years who continue to pay contributions to the country from which they were posted;

those living in one EU country and working in another (expected to be a small category for present purposes); and

in certain cases, students.

Any treatment provided by one EEA country to the citizen of another is billed on to the country of origin (either on the basis of actual cost or on the basis of a per capita sum for each S1 holder living in the EEA country in question). Health care provided under this scheme is not necessarily free at the point of delivery, depending on the usual practice of the state of residence. Patients living in other member states pay the same proportion of the cost as nationals of the country where they live (e.g. in France 30% of the cost of GP services: in Italy contributions based on income bands).

As far as pensioners are concerned there are more UK pensioners in the EEA than vice-versa so the UK pays more to other countries than it receives, but there is nothing anomalous or unfair in this. The UK pensioners abroad have paid NI contributions and tax all their working lives to the UK authorities, so the UK has received prior payment for this health service. It would be anomalous if either (i) the country of residence had to bear the cost of such treatment or (ii) no country were to bear these costs. The former because the country of residence would be bearing a cost for which it had received no contributions and the latter because the UK pensioner would be deprived of health care for which they had paid during their working lives. In either case the UK would simply be receiving an unjust windfall.

In practice the arrangement in many cases results in a cash saving to the UK compared with the cost of the NHS treating these pensioners. As stated above, in many countries the patient contributes to the cost of the healthcare. It is only the part paid by the State that is passed on to the UK under the reciprocal arrangement, whereas in the UK the NHS would have to provide the service free, subject only to prescription charges

Right to equal treatment

This fundamental right is indivisible from all of the rights above. It has been referred to above in relation to employment but extends much further than this e.g. in relation to social assistance, healthcare, educational opportunities and tax advantages. And note that the non-discrimination principle applies to both direct and indirect discrimination on the grounds of nationality.

Right to bring family

This right extends to close family and also includes spouses and civil partners who are nationals of third countries, e.g. US.

THE ARTICLE 50 NEGOTIATIONS

The above is merely an overview of some of the main issues facing British citizens in the EU post-Brexit. It is important to note that similar issues also face EU citizens based in the UK.

As mentioned in para. 9 above, the issues facing British citizens in the EU post-Brexit must be one of the focuses of the Article 50 withdrawal negotiations as most of these matters are dealt with in principle at EU, not national level.

Late last year the House of Lords’ Europe Committee Justice Sub-Committee took a substantial amount of evidence from legal experts on what would be the “acquired rights” of UK citizens in the EU and viceversa post-Brexit. Their report, “Brexit: acquired rights” (14 December 2016), is required reading for those considering whether and if so on what terms Article 50 should be triggered.

There was much speculation before the referendum that EU rights would somehow be protected as ‘acquired rights’, meaning that they would continue irrespective of the UK’s withdrawal from the EU. The evidence we received shows that this is not the case…. [Having considered the limited protection given by some other means] These alternative means of protecting EU rights post-Brexit must, however, be seen in their proper context. They overlap with only a handful of the thousands of EU rights which derive from the UK’s membership of the EU. As Professor Sionaidh Douglas-Scott told us: “A lot of the rights that are derived from EU law are simply not replicated in other instruments, so there is a real deficit …There will be many, many rights that simply do not find a home in any of these other instruments.” (Report: Summary, page 3)

Accordingly relying on existing legal rights would be wholly inadequate solution and lead to years of practical problems for up to 2 million British citizens in the EU who moved pre-Brexit to other EU countries in good faith and with the legitimate expectation that their EU citizenship rights were irrevocable.

The solution recommended by the Lords’ Committee and supported by us is:

The central recommendation of the report—and an inescapable consequence of the evidence we received—is that if certain EU rights are to be safeguarded on the UK’s withdrawal from the EU, they should be safeguarded in the withdrawal agreement itself. The agreement will be binding under international law, and will be given effect, and enforced, in the national legal systems of the UK and the EU Member States. This would be the most certain way of providing effective legal protection. It would also be the most effective way of reducing the level of litigation that would undoubtedly follow a Brexit where these rights were not safeguarded. We conclude that the rights to be safeguarded in the withdrawal agreement should be frozen as at the date of Brexit. We think it likely that the majority of them will be reciprocal with parallel EU rights, and so should be applied consistently with them. (Report: Summary, page 3)

1 February 2017

[1] As also recommended in the House of Lords report, para. 148. “EU nationals in the

UK and UK nationals in other EU Member States should not have to wait until the end of the negotiations to find out whether they have a future in the EU States where they have decided to live.”

[2] The argument for a unilateral guarantee has been made elsewhere and will not be repeated here see, e.g., House of Lords European Committee report para. 147.